The pandemic has taken us far from the Constitution

The United States Constitution contains three significant provisions that are notable for the principle that they represent.  This principle is that burdens to be borne by the people should only be imposed by the legislative branch of government, and that the people ultimately determine whether those burdens persist. This fundamental concept has been severely tested in the current political environment. 

  The first Constitutional provision is contained in Article I, Section 7, Clause 1 which provides that all bills for the raising of revenue shall originate in the House of Representatives.  It is relevant that the Senate cannot originate bills for raising revenue (although it can propose amendments) since, at the time the Constitution was ratified, the concept was that the House represented the people and the Senate represented individual states.  The Senate was the more aristocratic chamber, representing states without regard to population, and the House was intended to be more accountable to citizens who were organized into districts to facilitate such accountability.  The burdens of taxation and revenue generation were to originate in the body most attuned to popular sentiment, because the burdens to be borne by the citizenry should not be imposed outside of the legislative process most accountable to the public.  Free people should have to assent, collectively, to the imposition of financial burdens necessary to achieve the objectives of the Union.  

The second relevant provision is contained in Article I, Section 8, Clause 11, which provides that Congress shall have the power to declare war.  This again reflects the idea that the burdens of war must be approved through the representatives who are ultimately accountable to the people. 

The third Constitutional provision is contained in Article IV, Section IV, and provides that the United States shall guarantee to each State a republican form of government. In Federalist 39, Madison defined a Republic as "a government which derives all its powers directly or indirectly from the people... It is essential to such a government that it be derived from the great body of the society, not from an inconsiderable proportion, or a favored class of it; otherwise, a handful of tyrannical nobles, exercising by a delegation of their powers, might aspire to the rank of republicans." Madison further explained the rationale guaranteeing each state a republican form of government in Federalist 43: "...who can say what experiments may be produced by the caprice of particular States, by the ambition of enterprising leaders, or by the intrigues and influence of foreign powers?"  Hamilton, in Federalist 21, similarly asked "who can predict what effect a despotism, established in Massachusetts, would have upon the liberties of New Hampshire or Rhode Island, of Connecticut or New York?"  It is important to note that Hamilton was explicitly concerned about liberties, prioritizing them above other considerations.  

One may summarize these foundational arguments by concluding that the Constitution guarantees to each State a republican form of government because that is necessary to safeguard the liberties of the people. 

The Constitutional design is very well thought out, historically informed, and practical.  It recognizes the people as the source of legitimate government power and authority, and recognizes that the republican form of government is congenial to this principle as well as to the paramount virtue of liberty.  

We may contrast the foregoing Constitutional principles, wise and practical as they are, with a few recent vignettes. 

In a 2012 commentary published in the journal mBio, Anthony Fauci argued that, with respect to gain-of-function research on influenza viruses, "...the benefits of such experiments and the resulting knowledge outweigh the risks." He made this comment just after acknowledging that those risks included a pandemic.  Ignoring the hubris and unjustified assumptions that underlie his reasoning, Fauci's comments raise a couple of points.  The first is that he is not elected, he is not a representative accountable to the people, yet he imposing a burden on the people, i.e. the risk of a fatal pandemic, without the people giving their consent.  Furthermore, in subsequent statements, he (as well as President Biden) has insinuated that "public health" is more important than liberty, an assessment that is solely the right of the people to make for themselves.  He is the epitome of an arrogant elite, Madison's "favored class" who apparently believes that he has the right to determine for the nation and the world whether they should bear the risks of a devastatingly fatal pandemic.  He also seems to presume which liberties the people should do without, in the interests of what he naively thinks is science and public health.  

Several state governors used the pandemic to place explicit restrictions on rights to assemble, work, attend school, travel etc. under the guise of open-ended "emergency powers."  These again were executive actions, often promulgated by unelected administrative bureaucrats without the assent of people or their elected representatives.  Beyond a week or so, to the extent that such interventions were reasonable at all, the deference to executive power and bureaucratic ukases were definitely not a republican form of government, and should have been limited on that basis. Likewise, when the President attempted administrative legerdemain, which he admitted was unconstitutional, such as having the CDC impose an eviction moratorium, or the OSHA impose vaccine mandates, he was imposing burdens on the people without their assent or the assent of their elected representatives.  The President was not only flouting the Constitution in violation of his oath, he was demonstrating the despotism which Hamilton and Madison recognized as destructive. 

The people who drafted and ratified the Constitution were aware that nations sometimes had to suffer leaders who are corrupt, stupid, opportunistic and short-sighted.  They knew that what they referred to as “the Blessings of Liberty” were not a natural concern of the ambitious and historically ignorant.  That is why they wrote a constitution and provided the institutions by which the public will directs the government.  But the Constitution is an operating manual, not an insurance policy.  The people still have to provide upkeep and maintenance.  We have to take advantage of the processes and mechanisms available to us to defend our liberties and reject the notion that any cabal of experts, or tech billionaires, or media celebrities, or venal politicians either knows or cares what is best for us.  We have to deal with the risk of being called uncaring or hateful or a supremacist of one form or the other when we assert the simple premise that liberty is more important than safety, and no bureaucratic pronouncement to the contrary is valid.  We have to have the confidence to demand that no unaccountable bureaucracy can impose general burdens on the people without the people’s consent.  We have to make our elected representatives affirm this.  To the extent that there are any bans or mandates at all, they should be subject to legislative oversight and approval, not just administrative decree. 

There can be no liberty without courage.  We have to have the courage to show that we are worthy of the Blessings of Liberty that the people who drafted and ratified the Constitution left to us. 

Image: Pixabay / Pixabay License

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